Is Your Right to be Presumed Innocent Under Attack?

Posted on Jun 6, 2012 5:00pm PDT

What if you were accused of a crime you didn’t do? Would you want
it to be easy for the government to convict you and take away your freedom?

One of the fundamental principles that supports freedom in this country
is the presumption of innocence. To put the principle of the presumption
of innocence into perspective of just how important it is to our freedom
and liberty, think about how devastating and tragic it would be if you
were accused of a crime, arrested and convicted for something you didn’t
do. As Americans we call this an injustice. Taking away someone’s
liberty for something that he didn’t do – is intolerable.

Luckily for us, we have a court system that places a priority on preventing
the wrongful conviction of an innocent person. As such, one of the first
and most basic rules of this court system is called the presumption of
innocence. If someone is accused of a crime, the acused is presumed innocent
and the accuser (the government) must prove the accusation. The accused
does not have to prove that he didn’t do it because he is presumed
not to have done it. If the accuser cannot back-up the claim with enough
proof to convince a jury beyond a reasonable doubt that the accused committed
the crime, then the presumption of innocence remains intact and the accused
remains free. Our constitution requires that we should all be presumed
innocent of any conduct that would allow the government to take away our
freedom. Yes, we want it to be hard to convict people. This is in large
part is what makes us “free”.

However, over the past two decades there has been a rapid change in the
way that the our community and the courts treat citizens who are accused
of crimes. As courts get busier, and the public demands tougher law enforcement
and sentencing, people who are accused of crime get treated less and less
like they are presumed innocent.

The presumption of innocence is under attack. The police, the media, and
the public can be quick to unfairly judge. Lawmakers, prosecutors and
judges are under tremendous pressure from the public to be efficient and
tough. The public seeks a sense of security by demanding tougher law enforcement,
higher conviction rates and stiffer sentences. As such, if someone is
accused of a crime, the courts are increasingly inclined to place restrictive
devices like GPS monitors and home confinement bracelets on accused arrestees
prior to any conviction and before they are allowed to be released on
bond pending a trial. A case against an accused is often rushed along
while the rights of the accused are subordinated to the governments need
for efficiency.

I have personally seen the attack on the presumption of innocence play-out
over the course of my career as a government prosecutor and a criminal
defense attorney. I have seen police officers who want to close the case
and therefore jump to improper and hasty conclusions. I have seen prosecutors
fail to have the courage to throw out a baseless case because they would
rather lose a trial (or maybe just pull off a fluky unjust win), rather
than drop the case and get flak from their politician bosses. I have seen
Judges sacrifice due process and judicial integrity in the name of efficiency
and “docket control”. Sometimes a Judge is just afraid to
make the tough decision to deny a warrant, or to throw out evidence, or
to dismiss a case – for fear that they will be perceived as not
being tough enough (and face opposition in the next election).

But perhaps the best evidence of the eroding presumption of innocence is
what happens to innocent people who are arrested and then get their charges
dropped or dismissed because there is proof positive that they did not
commit a crime. Many times an accused can be arrested only to have no
charges ever filed against him. Sometimes a Judge may dismiss a case.
Other times a jury may find the accused to be not guilty. Amazingly, these
individuals do not automatically get their record cleared. They have to
seek to “expunge” the record. This can only be done in some
cases and may take months to accomplish. It can only be done once in a
lifetime (I guess because there is a presumption that if you have the
misfortune of being wrongly accused twice in your life then you must have
done something wrong?). Even if you do get your “record expunged”,
your “mug shot” and information remains plastered on the Internet
indefinitely. Worse yet, even if you are exonerated and get your record
expunged, you STILL must disclose your arrest under certain circumstances
or face criminal penalties for failing to do so.

So what is it that makes the police, prosecutors, judges, the media and
the public so willing to overlook the presumption of innocence? Many things.
But no matter what the cause, the rationalization is usually that the
accused must have done something wrong. But this isn’t always true.

Even with a system that tries to avoid the injustice of having innocent
people locked up for crimes they didn’t committ, innocent people
do get wrongly arrested and convicted. Thousands of people every year
are arrested and then have the charges dropped or dismissed. Many more
thousands are found to be not guilty by juries. In the last 12 years,
over 222 people have been released from prison after they served an average
prison sentence of 13.5 years for crimes they didn’t commit. These
people were ultimately released based on D.N.A. evidence that proved they
were innocent. And this is only the number of people who had the fortunate
circumstance of having D.N.A. evidence available. I actually heard a judge
recently proclaim that 222 people being wrongly convicted is “insignificant”.
Really? I bet it doesn’t feel insignificant to the 222 people who
had to spend over 13 years in prison for a crime they didn’t commit.
Calling the wrongful conviction of even one innocent citizen “insignificant”
is dangerous thinking and a clear demonstration of a lack of appreciation
for justice and the presumption of innocence.

How many more innocent people will get convicted for crimes that they didn’t
commit If we marginalize the presumption of innocence? Do we want America
to be a place where you can have have your freedom so easily taken away?

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